Download part ii--establishment of corporations

AUSTRALIAN CAPITAL TERRITORY
Territory Owned Corporations Act 1990
No. 53 of 1990
TABLE OF PROVISIONS
PART I—PRELIMINARY
Section
1.
2.
3.
4.
5.
Short title
Commencement
Interpretation
Construction of Act
Application to the Crown
PART II—ESTABLISHMENT OF CORPORATIONS
6.
7.
8.
9.
10.
11.
12.
13.
14.
Territory owned corporations
Principal objective of corporations
Status
Notification to the Assembly
Legal obligations
Memorandum and articles
Directors
Shares in corporations
Acquisition of subsidiaries
PART III—ACCOUNTABILITY
15.
Provision of information
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TABLE OF PROVISIONS—continued
Section
16.
17.
18.
19.
20.
21.
22.
23.
Acquisition and disposal of subsidiaries and undertakings
Directions to corporations
Audit
Preparation of statement of corporate intent
Statement of corporate intent
Modification of statement
Annual report
Financial year
PART IV—BORROWING
24.
25.
26.
27.
28.
Borrowing from Territory
Borrowing otherwise than from Territory
Security
Borrowing not otherwise permitted
Guarantee by Territory
PART V—TAXATION
29.
30.
31.
Territory taxes
Commonwealth tax equivalents
Borrowing levy
PART VI—MISCELLANEOUS
32.
33.
34.
Profits available for payment of dividends
Voting equality
Regulations
SCHEDULE 1
TERRITORY OWNED CORPORATIONS
SCHEDULE 2
PROVISIONS TO BE INCLUDED IN MEMORANDUM OF
ASSOCIATION OF A TERRITORY OWNED
CORPORATION OR A SUBSIDIARY
SCHEDULE 3
PROVISIONS TO BE INCLUDED IN ARTICLES OF
ASSOCIATION OF A TERRITORY OWNED
CORPORATION OR A SUBSIDIARY
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AUSTRALIAN CAPITAL TERRITORY
Territory Owned Corporations Act 1990
No. 53 of 1990
An Act to provide for the establishment of Government
enterprises as Territory owned corporations
[Notified in ACT Gazette S92: 21 December 1990]
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
PART I—PRELIMINARY
Short title
1. This Act may be cited as the Territory Owned Corporations
Act 1990.
Commencement
2. (1) Section 1 and this section commence on the day on which this
Act is notified in the Gazette.
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(2) The remaining provisions commence on 1 January 1991.
Interpretation
3. (1) In this Act, unless the contrary intention appears—
“Auditor-General” means the Auditor-General for the Territory
appointed under section 6 of the Audit Act 1989, and includes a
person appointed to act as Auditor-General under section 14 of
that Act;
“borrowing”, in relation to a Territory owned corporation or a
subsidiary, includes raising money or obtaining credit, whether by
dealing in securities or otherwise, but does not include obtaining
credit in a transaction forming part of the day-to-day operations of
the corporation or subsidiary;
“company” means a body corporate limited by shares that is a company
for the purposes of a law of the Commonwealth, a State or another
Territory dealing with the formation or regulation of companies;
“Corporations Act” means the Corporations Act 1989 of the
Commonwealth;
“group”, in relation to a Territory owned corporation, means the
Corporation and any subsidiary;
“Portfolio Minister”, in relation to a Territory owned corporation,
means the Minister who has administrative responsibility in
respect of the corporation;
“securities”, includes stocks, debentures, debenture stocks, notes,
bonds, promissory notes, bills of exchange and similar
instruments or documents;
“statement of corporate intent” means a statement prepared in
accordance with section 20;
“subsidiary”, in relation to a Territory owned corporation, means a
body corporate that—
(a)
under the Corporations Act is a subsidiary of the
corporation; and
(b)
all of the issued share capital of which is held by or on
behalf of the corporation;
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“Territory owned corporation” means a company referred to in
subsection 6 (1);
“voting shareholder”, in relation to a Territory owned corporation,
means the holder of a share in the corporation that confers the
right to vote at a general meeting.
(2) A reference to a voting shareholder is, in relation to a group or a
subsidiary, a reference to a voting shareholder of the Territory owned
corporation that—
(a) in the case of a group, is the holding company of the group; and
(b) in the case of a subsidiary, is the ultimate holding company of the
subsidiary.
(3) A reference to the voting shareholders is a reference to the voting
shareholders acting in concert.
Construction of Act
4. This Act shall be read and construed subject to any law of the
Commonwealth, and so as not to exceed the legislative power of the
Territory, to the intent that where any provision would, but for this section,
have been construed as being in excess of that power, it shall nevertheless
be valid to the extent to which it is not in excess of that power.
Application to the Crown
5. This Act binds the Crown.
PART II—ESTABLISHMENT OF CORPORATIONS
Territory owned corporations
6. (1) A company specified in Schedule 1 is a Territory owned
corporation.
(2) The Regulations may amend Schedule 1 to reflect a change in the
name of a company.
Principal objective of corporations
7. The principal objective of a Territory owned corporation is to carry
on business successfully and, to this end—
(a) to operate at least as efficiently as any comparable business; and
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(b) to maximise the sustainable return to the Territory on its
investment in the corporation in accordance with the performance
targets contained in the latest statement of corporate intent of the
corporation.
Status
8. (1) Subject to this and any other Act, a Territory owned
corporation or a subsidiary, by reason only of its status as such—
(a) is not entitled to any immunity or privilege of the Crown;
(b) is not and does not represent the Territory; and
(c) is not exempt from a tax, duty, fee or charge payable under an
Act.
(2) The Territory is not liable for the debts, liabilities and obligations
of a Territory owned corporation or a subsidiary unless—
(a) this or another Act provides that the Territory is liable; or
(b) the Territory agrees to be liable.
Notification to the Assembly
9. (1) Where a company becomes a Territory owned corporation or a
subsidiary, the Portfolio Minister shall, within 15 sitting days of the
occurrence, lay before the Legislative Assembly—
(a) a statement setting out—
(i)
the names of the shareholders; and
(ii)
a description of the principal activities to be carried out by
the company; and
(b) a copy of the memorandum and articles of association of the
company.
(2) If there is a change in a matter specified in the statement or in the
memorandum or articles of association, the Minister shall, within 15 sitting
days of the change, lay before the Legislative Assembly a further statement
setting out—
(a) in the case of a change in a matter specified in paragraph (1) (a)—
details of the change; and
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(b) in the case of a change in the memorandum or articles of
association—a summary of the change.
Legal obligations
10. The obligations imposed by this Act on a company or the directors
or shareholders of a company are additional to the obligations that are
imposed upon them by any other law or the memorandum or articles of
association of the company.
Memorandum and articles
11. (1) The voting shareholders of a Territory owned corporation
shall ensure that the memorandum and articles of association of the
corporation and any subsidiary at all times contain provisions to the effect
of those required—
(a) in the case of a memorandum of association—by Schedule 2;
(b) in the case of the articles of association of the corporation—by
Parts I and II of Schedule 3; and
(c) in the case of the articles of association of a subsidiary—by Parts I
and III of Schedule 3.
(2) Where a company becomes a Territory owned corporation or
subsidiary and—
(a) its memorandum of association does not comply with Schedule 2;
or
(b) its articles of association do not comply with Schedule 3;
the voting shareholders shall ensure that compliance is achieved as soon as
possible.
(3) The Legislative Assembly may approve a provision in the
memorandum or articles of association of a Territory owned corporation or
subsidiary that is inconsistent with this Act.
(4) A provision in the memorandum or articles of association of a
Territory owned corporation or subsidiary that—
(a) is inconsistent with this Act; and
(b) has not been approved by the Legislative Assembly;
is of no effect to the extent of the inconsistency.
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Directors
12. A person is not eligible to be appointed as director of a Territory
owned corporation or a subsidiary unless, in the opinion of the voting
shareholders, he or she has the expertise or skills necessary to assist the
corporation to achieve its principal objective.
Shares in corporations
13. (1) The Chief Minister may authorise a person—
(a) to participate, on behalf of the Territory, in the formation of a
company; or
(b) to acquire, on behalf of the Territory, shares in a company;
being a company that is, or it is intended will become, a Territory owned
corporation or a subsidiary.
(2) A person authorised under subsection (1) holds any share or other
right that he or she may have acquired in a company or proposed company
to which the authorisation relates on trust for the Territory.
(3) The Chief Minister may, on behalf of the Territory, direct a person
who holds a share or right on trust for the Territory to transfer it to another
person.
(4) A person who holds a share or right on trust for the Territory shall
not sell or transfer it otherwise than in pursuance of a direction under
subsection (3).
(5) A person is not eligible to hold a share in a Territory owned
corporation unless—
(a) he or she has been authorised under subsection (1); and
(b) in the case of a voting share—he or she is a Minister.
Acquisition of subsidiaries
14. (1) A territory owned corporation or a subsidiary shall not enter
into a specified transaction if, as a result of the transaction, a company
would or could become a partially owned subsidiary of the Territory owned
corporation or subsidiary.
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(2) In this section—
“partially owned subsidiary” means a company that—
(a)
is a subsidiary, within the meaning of the Corporations
Act, of a Territory owned corporation or subsidiary; and
(b)
not all of the issued share capital of which is held by or on
behalf of the corporation or subsidiary;
“specified transactions” means—
(a)
the participation, whether direct or indirect, in the
formation of a company;
(b)
the acquisition of shares in a company;
(c)
an agreement to underwrite the issue of shares in a
company or proposed company; and
(d)
the lending of money on the security of shares in a
company.
PART III—ACCOUNTABILITY
Provision of information
15. A Territory owned corporation or a subsidiary shall, upon request,
provide to the voting shareholders all the information that they may require.
Acquisition and disposal of subsidiaries and undertakings
16. (1) A Territory owned corporation or a subsidiary shall not,
without the prior written consent of the voting shareholders—
(a) dispose of any of its main undertakings;
(b) participate, directly or indirectly, in the formation of a company
that, upon incorporation, will be a subsidiary;
(c) enter into a transaction, contract or understanding whereby a
company becomes or ceases to be a subsidiary; or
(d) acquire, dispose of, mortgage, or give security over, a significant
asset, or give a charge over the whole or a significant part of its
undertaking or assets.
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(2) A consent may be given subject to a condition and, where it is so
given, the Territory owned corporation or subsidiary shall not carry out the
activity that the consent refers to until the condition is satisfied.
(3) Where a consent has been given in respect of a matter specified in
paragraph (1) (a), (b) or (c), the Portfolio Minister shall lay before the
Legislative Assembly within 15 sitting days of the giving of the consent a
statement setting out details of the matter consented to.
Directions to corporations
17. (1) Where—
(a) the voting shareholders of a Territory owned corporation request it
or a subsidiary to perform, cease to perform or refrain from
performing an activity or to perform an activity in a manner that is
different from the manner in which the directors intend to perform
the activity; and
(b) the directors of the company advise the voting shareholders that
compliance with their request would not be in the best commercial
interest of the company;
the voting shareholders may, by written direction, require the company to
comply with the request.
(2) The company shall comply with a lawful direction.
(3) The directors of a company are not to be taken to be in breach of
any duty under a law or the memorandum or articles of association of the
company by reason only of their compliance with a lawful direction.
(4)
The Portfolio Minister shall lay before the Legislative
Assembly—
(a) a copy of a direction; and
(b) a statement setting out the estimated net reasonable expense of
complying with it;
within 15 sitting days of the issue of the direction.
(5) The Territory shall reimburse the company for the net reasonable
expense of complying with a direction.
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(6) In this section a reference to net reasonable expense is a reference
to the difference between—
(a) the reasonable expense of complying with the direction; and
(b) the expense (if any) that the company would have incurred in
respect of the activity that is the subject of the direction, if the
direction had not issued.
(7) An amount is not payable under subsection (5) unless it is agreed
to by the Treasurer and the company or, failing agreement, is determined by
the Chief Minister.
Audit
18. (1) A Territory owned corporation or a subsidiary, or the
directors of such a corporation or of a subsidiary, shall not appoint a person
other than the Auditor-General as auditor of the company.
(2) A company that has appointed the Auditor-General as its auditor
shall pay his or her reasonable fees and expenses.
(3) In default of agreement the reasonable fees and expenses of the
Auditor-General shall be determined by the Treasurer.
Preparation of statement of corporate intent
19. (1) The directors of a Territory owned corporation shall submit
to the voting shareholders a draft statement of corporate intent in relation to
the corporation or, if the corporation has a subsidiary, in relation to the
group, within 3 months after the corporation becomes a Territory owned
corporation and within 1 month after the commencement of each
subsequent financial year.
(2) The directors shall—
(a) consider any comments made within 1 month of the submission of
the draft statement by the voting shareholders;
(b) consult with the voting shareholders on such of the comments as
the directors do not agree with, with a view to reaching
agreement;
(c) make such changes to the draft statement as are necessary to give
effect to the comments agreed to and any agreement under
paragraph (b); and
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(d) give a statement of corporate intent to the voting shareholders
within 2 months after the delivery of the draft.
(3) The Portfolio Minister shall lay a statement of corporate intent
before the Legislative Assembly within 15 sitting days after receiving it.
(4) Before laying a statement before the Legislative Assembly the
Portfolio Minister may delete from the statement any part dealing with
commercially sensitive information but, if he or she does so, he or she shall
lay before the Legislative Assembly, at the same time as he or she lays the
statement, a further statement setting out the general nature of the material
deleted and the reason for the deletion.
(5) Except for the purpose of giving effect to an Act, a person shall
not, before a statement is laid before the Legislative Assembly, publish or
disclose information or material that is contained in the statement or in a
draft of a proposed statement.
Statement of corporate intent
20. (1) A statement of corporate intent shall, in relation to the
Territory owned corporation or the group of companies comprising a
Territory owned corporation and any subsidiaries (as the case may be),
contain the following in respect of the financial year it relates to and each
of the 2 next following financial years:
(a) the commercial objectives of the group;
(b) a description of the main undertakings of the group;
(c) a description of the nature and scope of the activities to be
undertaken;
(d) business and corporate strategies;
(e) the targets and performance measurements by which the
performance of the corporation or group may be judged in relation
to its stated objectives;
(f) any other information that the voting shareholders may have
requested in writing the directors of the Territory owned
corporation to include in the statement.
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(2) A statement of corporate intent shall relate to—
(a) in the case of the first statement of a Territory owned
corporation—the financial year that ends on 30 June next
following the day when the company becomes a Territory owned
corporation; and
(b) in any other case—the financial year during which the statement
is to be given to the voting shareholders.
Modification of statement
21. (1) The directors may, with the agreement of the voting
shareholders, modify a statement of corporate intent.
(2) A modification shall not be made unless written details of the
proposed modification are furnished to the voting shareholders and they
agree to the proposed modification.
(3) Subsections 19 (2) and (5) apply in relation to a proposed
modification as if it were a draft statement.
(4) Subsections 19 (3), (4) and (5) apply in relation to a modification
as if it were a statement.
(5)
A modification laid before the Legislative Assembly is
incorporated with the statement that it modifies.
Annual report
22. (1) The directors of a Territory owned corporation shall furnish
to the voting shareholders within 4 months after the end of each financial
year of the corporation an annual report in accordance with this section on
the operations of the corporation or, if the corporation has subsidiaries, the
group in the financial year.
(2) The report shall comprise—
(a) a report on the operations of the corporation or group;
(b) such other information as has been requested by the voting
shareholders in order to make an informed assessment on the
operations;
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(c) such accounts, reports and financial statements as, under a law of
the Commonwealth relating to corporations, are required to be
made out in respect of the corporation and, in the case of a group,
each subsidiary and the group as a whole;
(d) a copy of the Auditor-General’s report on the accounts, reports
and financial statements referred to in paragraph (c), stating—
(i)
whether they give a true and fair view of the profit or loss
and state of affairs; and
(ii)
whether they comply with applicable accounting standards;
(e) an assessment of the performance of the corporation or group in
relation to its objectives that includes, but is not limited to, an
assessment of the performance in relation to the targets and
performance measurements set out in the relevant statement of
corporate intent; and
(f) particulars of the manner in which the corporation or group has
complied with any directions under section 16 (whether given
during the financial year or earlier) and of the cost of compliance.
(3) Where a report, information or material required by this section is
also required to be produced under a law of the Commonwealth dealing
with the regulation of companies, it may be produced for the purposes of
this section in the manner required by that law.
(4) The Portfolio Minister shall lay a copy of a report under this
section before the Legislative Assembly within 15 sitting days of receiving
it.
(5) In this section—
“group”, in relation to a Territory owned corporation, means the
corporation and any subsidiary for the purpose of this section;
“subsidiary”, in relation to a Territory owned corporation, means a
body corporate that, under the Corporations Act, is a subsidiary of
the corporation.
Financial year
23. A Territory owned corporation or a subsidiary shall not, without
the consent of the voting shareholders, adopt or have a financial year other
than a period of 12 months commencing on 1 July.
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PART IV—BORROWING
Borrowing from Territory
24. The Treasurer may, on behalf of the Territory, out of money
appropriated by the Legislative Assembly for the purpose, lend money to a
Territory owned corporation or a subsidiary on such terms and conditions
as the Treasurer, by instrument, determines.
Borrowing otherwise than from Territory
25. (1) A Territory owned corporation or subsidiary may, within
borrowing limits approved in writing by the Treasurer in respect of a
financial year—
(a) borrow money, otherwise than from the Territory; or
(b) raise money, otherwise than by borrowing;
that is from time to time necessary for the exercise of its powers or the
performance of its functions.
(2) Without limiting the generality of subsection (1), the corporation
or subsidiary may, under that subsection, borrow money, or raise money
otherwise than by borrowing, by dealing in securities.
(3) A borrowing of money, or a raising of money otherwise than by
borrowing, may be made, in whole or in part, in a currency other than
Australian currency.
(4) For the purposes of this section—
(a) the issue by a corporation or subsidiary of an instrument
acknowledging a debt in consideration of—
(i)
the payment or deposit of money; or
(ii)
the provision of credit;
otherwise than in relation to a transaction that is in the ordinary
course of the day-to-day operations of the corporation or
subsidiary, shall be deemed to be a raising, otherwise than by
borrowing, of the amount of money equal to the amount of the
money paid or deposited or the value of the credit provided, as the
case may be; and
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(b) the obtaining of credit by the corporation or subsidiary, otherwise
than in relation to a transaction that is in the ordinary course of the
day-to-day operations of the corporation or subsidiary, shall be
deemed to be a raising, otherwise than by borrowing, of an
amount of money equal to the value of the credit so obtained.
Security
26. A corporation or subsidiary may give security over the whole or
any part of its assets for—
(a) the repayment of money borrowed under section 24 or
paragraph 25 (1) (a) and the payment of interest on money so
borrowed; or
(b) the payment of money (including any interest) that the corporation
or subsidiary is liable to pay with respect to money raised by
virtue of section 25.
Borrowing not otherwise permitted
27. (1) A Territory owned corporation or subsidiary shall not
borrow, or raise money otherwise than by borrowing, except in accordance
with this Part.
(2) A contract is not illegal, void or unenforceable by reason only that
this Part has not been complied with.
Guarantee by Territory
28. The Territory may guarantee, in such manner and on such
conditions as the Treasurer thinks fit—
(a) the repayment of the principal of, and the payment of interest on,
any sum that a Territory owned corporation or subsidiary borrows;
and
(b) the performance by a Territory owned corporation or a subsidiary
of a function or of an obligation under a contract.
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PART V—TAXATION
Territory taxes
29. (1) Tax is not payable by a Territory owned corporation or a
subsidiary in relation to—
(a) an exempt activity;
(b) an instrument or document prepared, made, executed or lodged to
give effect to, or in connection with, an exempt activity; or
(c) a transaction entered into for the purpose of an exempt activity.
(2) Where an activity, instrument, document or transaction is within a
paragraph of subsection (1), the Treasurer shall certify in writing that the
activity, instrument, document or transaction (as the case may be) is one to
which subsection (1) applies.
(3) The Treasurer may delegate to a public servant the function under
subsection (2).
(4) A certificate under this section is evidence of the matters stated in
the certificate.
(5) In this section—
“exempt activity” means—
(a)
the incorporation of a relevant company;
(b)
the acquisition of shares in a relevant company;
(c)
the issue or transfer of shares in a relevant company;
(d)
the transfer of assets from the Territory or an authority of
the Territory to a relevant company;
(e)
the assumption of responsibility by a relevant company for
a liability of the Territory or an authority of the Territory;
or
(f)
an activity or thing necessary to give effect to, or
incidental to, another exempt activity;
“relevant company” means—
(a)
a Territory owned corporation;
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(b)
a subsidiary; or
(c)
a company that the Portfolio Minister certifies in writing
that it is intended will become a Territory owned
corporation or subsidiary;
“tax” includes a duty, fee, levy or charge payable under an Act.
Commonwealth tax equivalents
30. (1) This section applies to a Territory owned corporation or
subsidiary that, by reason only of being owned by or on behalf of the
Territory, is not required to pay a tax under a law of the Commonwealth
that deals with taxation or imposes a tax (in this section referred to as an
“equivalent law”).
(2) Subject to this section, a company to which this section applies
shall pay to the Territory an amount (in this section referred to as a
“Commonwealth tax equivalent”) equivalent to the tax that it would be
liable to pay under an equivalent law if it were not such a company.
(3) The Commissioner may, at any time, make an assessment of the
Commonwealth tax equivalent payable by a company.
(4) The Commissioner may, at any time, amend an assessment by
making such alterations or additions as he or she thinks necessary,
notwithstanding that the Commonwealth tax equivalent may have been paid
in respect of the assessment.
(5) An amended assessment is an assessment for the purposes of this
or any other Act.
(6) The Commissioner shall, within 14 days after making an
assessment, give a copy of the assessment to the company to which the
assessment has issued.
(7) A document purporting to be a copy of an assessment is
evidence—
(a) of the due making of the assessment; and
(b) except in proceedings by way of review of the assessment or the
process of making it—of the Commonwealth tax equivalent
payable by the company to which the assessment has issued.
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(8) Subject to this section, payment of a Commonwealth tax
equivalent shall be made on such terms as the Commissioner determines.
(9) A Territory owned corporation that is dissatisfied with an
assessment or determination of the Commissioner may request the
Commissioner to refer it to the Treasurer.
(10)
The Treasurer may, in writing, vary an assessment or
determination that has been referred to him or her under subsection (9).
(11) An assessment or determination varied by the Treasurer has
effect as varied.
(12) For the purposes of performing a function under this section the
Commissioner has all the powers, and may exercise any discretions, that,
by any law of the Commonwealth, are vested in the authority or officer
administering the equivalent law.
(13) A company to which this section applies shall furnish to the
Commissioner all the information, returns or documents that, if it were not
such a company, it would be obliged under a law of the Commonwealth to
furnish to the authority or officer administering the equivalent law.
(14)
The information, returns and documents referred to in
subsection (13) shall be furnished in such a manner and within such times
as they would be required to be furnished under the law of the
Commonwealth.
(15) The Treasurer may by instrument declare that a provision of a
law of the Commonwealth is not to be an equivalent law in respect of—
(a) a company; or
(b) all companies;
to which this section applies.
(16) A declaration under subsection (15) is a disallowable instrument
for the purposes of section 10 of the Subordinate Laws Act 1989.
(17)
A provision that is the subject of a declaration under
subsection (15) is not an equivalent law for the purposes of this section.
(18) In this section—
“Commissioner” means the Commissioner for Australian Capital
Territory Revenue;
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“tax” includes a duty, fee or charge.
Borrowing levy
31. (1) A Territory owned corporation or subsidiary that borrows
moneys, whether from the Territory or otherwise, shall pay to the Territory
such amount, or an amount calculated in such a manner, as the Treasurer
determines in writing.
(2) An amount payable under this section shall be paid in such a
manner, or by such instalments, as the Treasurer determines in writing.
(3) A determination under this section may be made in relation to a
borrowing contract or to a class of borrowing contracts.
PART VI—MISCELLANEOUS
Profits available for payment of dividends
32. (1) A Territory owned corporation or subsidiary shall pay a
dividend only out of moneys lawfully available for the purpose.
(2) For the purpose of calculating the profits that, in respect of a
financial year, are available for the payment of a dividend, the directors
shall deduct from the profits of the company for that year any amount that,
under another Act, is payable out of those profits.
Voting equality
33. A Territory owned corporation shall not issue shares to a voting
shareholder if the issue would result in a voting shareholder being able to
cast a greater number of votes at a meeting than another voting shareholder.
Regulations
34. The Executive may make regulations, not inconsistent with this
Act, prescribing matters—
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Unauthorised version prepared by ACT Parliamentary Counsel’s Office
Territory Owned Corporations
No. 53, 1990
SCHEDULE 1
19
Section 6
TERRITORY OWNED CORPORATIONS
ACTTAB Limited
SCHEDULE 2
Section 11
PROVISIONS TO BE INCLUDED IN MEMORANDUM OF
ASSOCIATION OF A TERRITORY OWNED CORPORATION OR A
SUBSIDIARY
Provisions to the effect of the following provisions are to be included in
the memorandum of association of a company that is a Territory owned
corporation or a subsidiary.
1. The memorandum and articles of association may not be altered in
a way that is inconsistent with the provisions of this Schedule unless and
until a resolution approving the alteration or addition has been passed by
the Legislative Assembly.
2. The provisions of the Territory Owned Corporations Act 1990
prevail over any inconsistent provisions of the memorandum of association
that have not been approved by the Legislative Assembly.
3. The memorandum of association shall state the objects of the
company.
Unauthorised version prepared by ACT Parliamentary Counsel’s Office
20
Territory Owned Corporations
No. 53, 1990
SCHEDULE 3
Section 11
PROVISIONS TO BE INCLUDED IN ARTICLES OF ASSOCIATION
OF A TERRITORY OWNED CORPORATION OR A SUBSIDIARY
Part I
Provisions to the effect of the following provisions are to be included in
the articles of association of a company that is a Territory owned
corporation or a subsidiary.
1. A shareholder who is a Minister ceases to be eligible to hold shares
in the company on ceasing to be a Minister, and may thereafter exercise no
right as a shareholder (except to transfer his or her shares as directed by the
Chief Minister).
2. The Chief Minister is empowered to execute a transfer of an issued
share, whether or not the shareholder consents, and in the case of a
shareholder who, at the time of becoming a shareholder, was a Minister,
whether or not the shareholder still holds office as a Minister, and the
company shall register a transfer signed by the Chief Minister that is
accompanied by a declaration that the signature of the shareholder cannot
readily be obtained.
3. All decisions relating to the operation of a company are to be made
by or under the authority of the directors in accordance with the statement
of corporate intent of the company or, if the company is a subsidiary, of the
Territory owned corporation that is the ultimate holding company.
4. The company and its directors shall comply with the Territory
Owned Corporations Act 1990.
5. The directors shall declare such dividend as is agreed to between
them and the voting shareholders or, failing agreement, as the voting
shareholders direct in writing.
6. The company shall ensure that the memorandum and articles of
association of its subsidiaries at all times contain provisions to the effect of
those required by this Schedule.
7. The company shall, to the maximum extent practicable, ensure that
every subsidiary complies with the memorandum and articles of association
of the subsidiary and with the requirements of the Territory Owned
Corporations Act 1990.
Unauthorised version prepared by ACT Parliamentary Counsel’s Office
Territory Owned Corporations
No. 53, 1990
21
SCHEDULE 3—continued
8. The provisions of the Territory Owned Corporations Act 1990
prevail over any inconsistent provisions of the articles of association that
have not been approved by the Legislative Assembly.
Part II
Provisions to the effect of the following provisions are to be included in
the articles of association of a company that is a Territory owned
corporation.
1. The issued capital of a company shall consist of 2 shares that entitle
the holders to vote at a general meeting and 3 other shares.
2. Only a Minister may hold a voting share in the capital of the
company.
3. The directors of the company are to be appointed by the voting
shareholders.
4. Only the voting shareholders may vote at a general meeting of the
company.
5. The quorum at a general meeting shall consist of 2 voting
shareholders present in person or by proxy.
Part III
Provisions to the effect of the following provisions are to be included in
the articles of association of a company that is a subsidiary.
1. A person shall not be appointed as director unless the voting
shareholders consent to the appointment.
2. Shares in the company may not be issued or transferred unless the
voting shareholders have consented in writing.
[Presentation speech made in Assembly on 29 November 1990.]
© Australian Capital Territory 1990
Unauthorised version prepared by ACT Parliamentary Counsel’s Office